Browning v. McNear

HENSHAW, J.

This is a second appeal after the second trial. The decision of this court upon the former appeal is reported in 145 Cal. 272, [78 Pac. 722]. The pleadings are the same. The findings of the court declare an executed sale upon October 9, 1899, without any warranty express or implied, and declare also that the sale was not by sample. In the opinion rendered upon the former appeal it was said: “Whether or not the parties, plaintiff and Hickok, representing defendant, then agreed upon a present transfer of the barley is a question of fact, the determination of which may well be left to the superior court upon another trial. It is proper to say, however, that the mere fact that payment for the grain was expressly deferred to the time of shipment, and was to be made only as against shipping receipts, does not exclusively establish that the

purchase

was against shipping receipts only, or that there was no agreement for a present transfer of the property.”

If the court’s findings of an executed sale upon October 9th, with delivery postponed at the purchaser’s risk, is supported by the evidence, there is an end of the controversy between the parties on this appeal. The evidence touching this matter was the same upon the former trial as upon this. The court’s finding upon the former trial was that the sale was executory. Concerning that finding this court declared: “There is some doubt as to whether the evidence supports the finding of the court.” Clearly, therefore, if there was doubt whether the evidence supported the finding of an executory contract, it must be that there was substantial evidence to support a finding of an executed contract, which is the finding upon the present appeal. “The title to personal property, sold or exchanged, passes to the buyer whenever the parties agree upon a present transfer, and the thing itself is identified, whether it is separated from other things or not.” (Civ. Code, sec. 1140.) “When the terms of sale are agreed on, and the bargain is struck, and everything that the seller has to do

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with the goods is complete, the contract of sale becomes absolute, without actual payment or delivery, and the property and risk of accident to the goods vest in the buyer.” (2 Kent’s Commentaries, p. 492; Mechem on Sales, sec. 483.) The facts established in support of the court’s findings are the following,: The barley in question was stacked along the river bank in the grain yard owned and operated by plaintiff as a warehouseman in connection with a warehouse situated in the yard. It was weighed and ready for sale and shipment. Plaintiff held the warehouse receipts commonly called “yard receipts”" for the barley. These receipts showed the quantity and weight.. Upon the day of the sale plaintiff was hauling the barley from the yard into the warehouse. Eight hundred and thirty-two sacks had so been hauled, but upon the completion of the transaction with Hickok, defendant’s agent, no more was hauled. Upon that day Hickok inquired what Browning would take for the barley, and Browning stated that his price was. 811/4 cents per hundred pounds. Hickok conferred with his principal by telephone. That conversation was not reported to Mr. Browning, but later in the day Hickok told Browning that he would take the barley at that price, and that defendant would send a boat for it and take it from the river bank and warehouse and would pay for it as soon as it was shipped. Browning demurred, desiring payment at the time, but finally agreed that he would accept payment as the barley was shipped. The yard receipts for the barley, as